Legislation

1. Sources of law

Judges Politicians

Courts Parliament/Legislation

Unenacted law Enacted law

(Common Law) (Statute Law)
 1. Who makes the law?
• Legal change must be brought about by a
body with a recognised law-making power.
• In Australia, the power to make law is
exercised by the various governments that
exist at federal, state and territory level.
• Governments make law through specified
agencies, following recognised procedures or
processes.
• So who are these agencies?...

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1. Law making bodies in Australia

https://www.youtube.com/watch?v=NhYpkVclXbA
 2. Australian legislatures
• In Australia there are many legislatures – the
Commonwealth, states and self-governing territories
all have legislative bodies.
• The Commonwealth and state legislatures can be
referred to as either legislatures or parliaments. The
legislatures of the self-governing territories are not
called parliaments.
• Australian legislatures are generally “bicameral”,
consisting of an “upper” and a “lower” house.
Queensland is the exception, having a single
(unicameral) legislature
 2. Passing legislation
• Legislators makes law called variously:
• Legislation
• Statutes
• Acts
• Enacted law
• Law made by a legislature is called ‘legislation’ or
‘statutory law’ or an ‘Act of Parliament’.
• Each act has a name. An example is the
Competition and Consumer Act 2010 (Cth).
3. Law making powers of Australian
legislatures
• State legislatures obtain their power to make law
in the provisions of their respective State
Constitutions.

• Each state and territory legislature has a general

legislative power “to make law for peace, order
and good government”. This power is limited to
their particular territory.

• State and territory legislatures share some powers

with the Commonwealth parliament.
Continued…
 3. Law making powers of Australian
legislatures
• The Commonwealth government has a less general
legislative power than the state and territory
governments.
• The Commonwealth constitution gives the
Commonwealth parliament power to make law in
relation to specified matters only.
• Some of these powers are exclusive to the
Commonwealth parliament while others are shared
with the states:
• Exclusive power – e.g. s 52, Commonwealth
constitution
• Concurrent (shared) powers - s 51 Commonwealth
constitution
 3. Law making powers of Australian
legislatures
• If both the Federal parliament and a State or Territory
legislature legislate in a sphere where legislative power
is shared, the enacted provisions exist alongside each
other as long as the provisions do not conflict.
• However, if federal and state or territory legislation
conflicts in a sphere where the power is shared, the
federal legislation prevails over the state legislation to
the extent of the inconsistency.

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 4. Law making powers of local
governments
• Local governments are established by state and
territory governments.
• They have specified power to make laws called
‘by-laws’.
• By-laws will be invalid if they are inconsistent
with state or federal law, or if they exceed the
powers given to the local government.

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Intersecting spheres of government in
Australia

State Federal
Government Government

Local
Government
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 5. The legislative process

•Outline the legislative process, sufficiently to

explain the following terms:
• Bill
• First , Second and Third Reading of a Bill
• Royal Assent
• Commencement
 5. The legislative process

ACT
Crown
House of Review Assent

House of Origin BILL

 5. The legislative process
• The process is explained more fully in the
tutorial ‘Legislation’.
• Table on page 22 of FPBL Source Book
6. What you will find in a statute

Number Short title

Date of assent Table of provisions

Sections
Long title or -Definitions
Objects (purpose) -Numbers & headings
clause
 7. An approach to reading legislation
• Skim through the legislation as a whole to get an
idea of its structure, content and overall purpose.
Take note of the title; the objects clause; the table
of provisions; the use of section numbers and
headings; the definitions section.
• Then find the sections most relevant to your
enquiry. Read them and the surrounding
sections. Follow up any cross-references to
other sections.
• Check for defined terms.
 3. Interpretation [The Dog Act 1976 (WA)]
(1) In this Act, unless the context otherwise requires —
attack, in relation to the behaviour of a dog, does not include behaviour which was an
immediate response to, and was induced by, provocation, but includes —
(a) aggressively rushing at or harassing any person or animal; or
(b) biting, or otherwise causing physical injury to, a person or an animal; or
(c) tearing clothing on, or otherwise causing damage to the property of, the
person attacked; or
(d) attempting to attack, or behaving in such a manner toward a person as would
cause a reasonable person to fear physical injury,
unless the owner establishes that the behaviour was justified by a reasonable cause;
dangerous dog means a dog which is the subject of a declaration under section 33E
declaring it to be a dangerous dog;
guide dog means a dog trained by a guide dog training institution recognized by the Guide
Dogs for the Blind Association of Western Australia Incorporated which is used as a guide
by a person who is blind or partially blind, and for certain purposes provided for in this Act
includes a dog which is in the course of such training;
 8. Interpreting legislation
• Sometimes, the meaning of a section in legislation
is uncertain. It might be argued that the section
could mean one thing rather than another; or that
it could be applied either widely or narrowly.
Such situations involve interpreting the legislation
to ascertain its proper meaning.
• Rules of statutory interpretation should be
applied to resolve interpretation questions.
• In outline, these rules are…
 8. Interpreting legislation

But wait!
NOTE VERY WELL:
Before you apply the various rules of statutory
interpretation, it is important to actually
determine what word or phrase you are actually
interpreting!
E.g. Are you interpreting the word “talk”
or “wear” or “stop”?
 8. Interpreting legislation: literal approach

• Give the words used their ordinary, natural

meaning. Use a good dictionary to assist with
this.
• For example: “No person shall ‘talk’ on their
mobile phone while driving a motorcar”
• Ordinary, natural meaning of “talk” is to
talk; not listen, not SMS.
• For example: “Every person who rides a bicycle
must ‘wear’ a helmet”
• Ordinary, natural meaning of “wear” is to
have the item on your body; not necessarily
to have on your head.
 8. Interpreting legislation: golden rule

• If the literal approach gives an absurd result, or one

that is repugnant or inconsistent with the overall act,
modify the literal meaning to the extent necessary to
avoid the absurdity or inconsistency.
• For example: “A driver is required to ‘stop’ after
being involved in an accident”.
• Applying the literal approach would suggest that
stopping for only an instant or few seconds (after an
accident) is okay.
• But isn’t that absurd?
• Isn’t the point of the provision to make sure that
people remain stopped after an accident to make
sure that everyone is safe, and that everything that
needs to be done is done?
8. Interpreting legislation: purpose approach

• If the literal approach does not give a clear and

unambiguous meaning, and as a general aid to
the literal approach, ascertain the meaning of
words by having regard to the purpose of
Parliament when it passed the Act. Choose the
meaning that best serves that purpose.

• So, effectively a two-stage approach:

• Determine the purpose.
• Choose a meaning that best serves that
purpose.
 8. Interpreting legislation

• Question: But how do we determine the purpose

of Parliament when it passed the Act?

• Answer: Intrinsic and extrinsic evidence!

 8. Interpreting legislation

Intrinsic evidence
•Intrinsic evidence of the legislature’s purpose can
be found in:
• Objects sections, titles, long titles
• The structure of the act, including divisions
and headings
• Information in schedules or annexures
• Information in other sections of the act
 8. Interpreting legislation

Extrinsic evidence
•Extrinsic evidence of the legislature’s purpose can
be found in:
• Parliamentary papers, reports and
documents, including 2nd reading speech.
• Reports of law commissions and
committees.
• Background documents, e.g. international
treaties and agreements.
 8. Interpreting legislation

• There are other, more specific rules of

interpretation that may assist in particular cases –
e.g. maxims (but remember: not all the rules in
the source book and tutorial are examinable -
please see slide 2).

• Having applied ALL of the various rules of

statutory interpretation, state your final
conclusions.